Wednesday, March 7, 2012

Copyright Versus Patent: Let's Get It On!

Let's Get It On!
If you follow my blog at all, you know that I often comment on the emerging use of copyright law over patent law to protect software. In fact, I will tell anyone who'll listen that I think software copyrights should be the preferred mechanism for protecting your software over patents. But even I could not foresee this: copyright lawyers taking on patent lawyers head to head in the ultimate legal octagon.
That's right. A group of copyright owners has sued quite a few patent lawyers for submitting so-called prior art references to the Patent Office during the prosecution of patents. Understand that the law requires those patent owners (and their clients) to submit copies of those references to the Patent Office or risk having their patents invalidated. And the Patent Office even issued its own internal memorandum concluding that such submissions are fair use. Still, John Wiley claims that those patent lawyers need an additional license to make the copies that were submitted to the Patent Office.
Now, I don't have a dog in this race, but I will say that I can't possibly see how this is not fair use. Actually, I probably do have a dog in this race since I still do a fair amount of patent prosecution. But still, I don't see how this case ends any other way. I mean the law requires that these copies be submitted. Literally none of the fair use factors cuts in favor of the copyright owner on this. It seems like just a big ole shake down to me. But it is really fun to watch.
For a more in depth analysis of the claims and issues, head over to the Patently-O website and read more.